Dubuque River Rides_Docking Lease AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
Dubuque
All-America City
2007
SUBJECT: Docking License Agreement Between the City of Dubuque, Iowa, and
Dubuque River Rides, Inc.
DATE: September 14, 2011
City Attorney Barry Lindahl recommends City Council approval of a Docking License
Agreement between the City of Dubuque and Dubuque River Rides, Inc.
The significant terms of the Docking license Agreement are:
• Five year term beginning May 1, 2011 and ending April 30, 2016;
• Docking fee of $0.75 per fully paid passenger payable monthly;
• River Rides will provide City each calendar year with 1,150 vouchers for the City
to distribute to residents of targeted neighborhoods and low- income residents or
for such other purposes as the City determines appropriate. The vouchers may
be used for one and a half hour sightseeing cruises;
• The Licensed Premises can only be used for riverboat rides, small boat tours,
pontoon boat rental, serving of meals and /or beverages on riverboats, offices and
training, and a restaurant with bar. River Rides is required to provide regularly
scheduled riverboat rides for not less than 12,000 passengers per calendar year.
The City is requiring River Rides to reconfigure its current operations to accommodate
the new boat docks in the Ice Harbor. In connection with that reconfiguration, the City
will pay the cost of the initial relocation and restoration of the landside utilities that
service River Rides. All other relocation costs will be the responsibility of River Rides.
To assist River Rides with relocation costs, the City agrees to provide a no interest loan
to River Rides for the costs of relocation not to exceed $64,000. The loan will be repaid
by River Rides during the term of the lease. Ten Thousand Dollars ($10,000) of the
loan will be forgiven upon satisfactory fulfillment by River Rides of all of the conditions of
the agreement.
To accommodate the construction of the new boat docks in the Ice Harbor, River Rides
has agreed to remove all of its facilities from the boat dock construction area to the
proposed Licensed Premises by September 9th.
concur with the recommendation and respectfully request Mayor and City Council
approval.
Mi ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
2
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
RESOLUTION NO. 324 -11
RESOLUTION DISPOSING OF AN INTEREST IN REAL PROPERTY BY LICENSE
AGREEMENT WITH DUBUQUE RIVER RIDES, INC.
WHEREAS, the City of Dubuque, Iowa (City) is the owner of the real property
shown on Exhibit A attached hereto (the Property);
AND WHEREAS, Dubuque River Rides, Inc. (River Rides) desires to license the
Property for docking its vessels and other related uses upon the terms set forth in a
Docking License Agreement now on file in the Office of the City Clerk at City Hall,
Dubuque, Iowa, which provides among other things for a term of five years;
AND WHEREAS, the City Council, pursuant to notice published as required by law,
held a public hearing on the proposed disposition of the Property on September 19, 2011,
and overruled all objections thereto.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque approves of the Docking
License Agreement disposing of the City's interest in the Property.
Section 2. The Mayor is authorized and directed to execute the Docking License
Agreement on behalf of the City.
Passed, approved and adopted this 19th day of September , 2011.
Att- t: K S. Firnsta I, City Clerk
n V. Sutton, Mayor Pro -Tem
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CITY OF DUBUQUE
NOTICE OF PUBLIC HEARING
ON PROPOSED RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY LICENSE AGREEMENT WITH DUBUQUE
RIVER RIDES, INC.
Notice is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on a proposed resolution to dispose of the City's
interest in the property in the Ice Harbor shown on Exhibit A below by Docking License Agreement between the City and Dubuque River Rides. Said public
hearing will be held at 6:30 p.m. in the City Council Chambers at the Historical Federal Building, 350 West 6'h Street, Dubuque, Iowa on September 19,
2011.
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A copy of the resolution and the proposed Docking license Agreement are on file at the Office of the City Clerk, City Hall, Dubuque, Iowa.
Published this 9'h day of September, 2011.
Kevin S. Firnstahl
Acting City Clerk
11 9/9
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: September 09, 2011, and for which the charge is $111.92.
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this C9 day , 20 //
Notary Public in and for Dubuque County, Iowa.
MARY K. WESTERMEI
Commission Number 154
1
Masterpiece on the Mississippi
MEMORANDUM
v
BARRY LIND 'H
CITY ATTOR EY
To:
DATE: October 7, 2011
RE:
Kevin Firnstahl
City Clerk
Dubuque River Rides Docking License Agreement
Attached is the original fully executed Dubuque River Rides Docking License
Agreement, dated September 19, 2011. I have retained a copy for my file.
Thank you.
BAL:tls
Attachment
F: \USERS \tsteckle \Lindahl \Dubuque River Rides\ Firnstahl_ OrigDockingLicenseAgreement _100711.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
DOCKING LICENSE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE RIVER RIDES, INC.
THIS AGREEMENT (the Agreement), executed in duplicate, made and
entered into this 19th day of September , 2011 by and between
THE CITY OF DUBUQUE, IOWA (City) whose address for the purpose of this
License is City Hall, 50 West 13th Street, Dubuque, Iowa 52001 and DUBUQUE
RIVER RIDES, INC., (River Rides) whose address for the purpose of this
License is P.O. Box 1276, Dubuque, Iowa 52004 -1276.
SECTION 1. DOCKING PRIVILEGE; TERM.
1.1. City, in consideration of the agreements and conditions herein contained,
on the part of the River Rides to be kept and performed, grants unto the River
Rides and River Rides, the privilege of docking its vessels, according to the
terms and provisions herein, in the following described real estate, situated in
Dubuque County, Iowa:
See Exhibits A and B attached hereto and by this reference made a
part hereof
with the improvements thereon and all rights, easements and appurtenances
thereto belonging (the Licensed Premises), for a term commencing at midnight
of the day previous to the first day of the Term, which shall be on the 1st day of
May, 2011, and ending at midnight on the last day of the Term, which shall be on
the 30th day of April, 2016, upon the condition that the River Rides pays the
Docking Fee described below, and otherwise performs as in this Agreement
provides.
1.2. During the Term, City reserves the right in its sole discretion to require the
reconfiguration of the Licensed Premises. The City is requiring reconfiguration of
the Licensed Premises as consideration for this Agreement, and the parties
agree to divide the cost of the reconfiguration as follows:
A. City shall pay the costs of the initial relocation and restoration of
the landside utilities that service River Rides.
B. River Rides shall pay for all other relocation expenses.
1.3. City agrees to provide a no- interest loan to River Rides for the actual,
reasonable costs of River Rides' relocation of its facilities not to exceed $64,000
and subject to prior written approval of such costs by City (the Loan). The Loan
shall be secured by collateral provided by River Rides and approved by City. The
Loan shall be repaid by River Rides in equal monthly installments (5 -year
090111 balrev2
amortization) beginning on the first day of the first month after any Loan funds
are advanced by City to River Rides and on the first day of each month
thereafter during the Term, any remaining balance being due on the 30th of April,
2016. In the event this License is terminated for any reason, the balance of the
Loan shall be immediately due and payable. City agrees to forgive $10,000 of
the Loan upon satisfactory fulfillment by River Rides of all of the conditions of
this Agreement.
1.4. Once the River Ride utilities are initially relocated, all operational, future
ownership, maintenance and repairs of said utilities shall be the responsibility of
River Rides.
1.5. City grants to River Rides during the Term permission to install one sign
approved by City as shown on Exhibit A. City will cooperate with River Rides to
determine a location for a wayfinding sign with directions to River Rides to be
installed at City's cost.
SECTION 2. DOCKING FEE.
2.1. Docking Fee. River Rides agrees to pay to City a monthly docking fee
(the Docking Fee) during the Term as follows:
$0.75 per full - paying passenger in the calendar year.
The Docking Fee shall be paid monthly by not later than the 10th day of the
following month beginning on the 10th of June, 2011, and not later than the 10th
day of each month thereafter at the address of City, as above designated, or at
such other place in Iowa, or elsewhere, as the City may, from time to time,
designate in writing.
2.2. River Rides shall submit to City with each monthly payment of the Docking
Fee a report showing the number of all passengers for that month including
paying passengers, nonpaying passengers and passengers with vouchers.
2.3. River Rides shall provide City upon execution of this Agreement and on or
before April 1 of each calendar year thereafter with 1150 vouchers for City to
distribute to residents of targeted neighborhoods and low income residents or for
such other purposes as City determines appropriate. The vouchers shall be
used for the 1'/2 hour sightseeing cruise, Monday through Thursday, or as
otherwise agreed by River Rides. Passengers boarding on vouchers provided in
this Section shall not be included in the calculation of the Docking Fee in Section
2.1.
SECTION 3. POSSESSION. River Rides shall be entitled to possession on
the first day of the term of this License, and shall yield possession to the City at
the time and date of the close of this License term, except as herein otherwise
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expressly provided. City has no obligation for any costs or expenses incurred by
River Rides in connection with this Lease except as provided in Section 1.2.
Should City be unable to give possession on said date, River Rides' only
damages shall be a rebating of the pro rata Docking Fee paid.
SECTION 4. USE OF PREMISES.
4.1. The Licensed Premises shall be used by River Rides for the following
uses only: riverboat rides; small boat tours; pontoon boat rental; serving of meals
and /or beverages on River Rides' riverboats; River Rides' offices and training;
and a restaurant with bar, including catering service but only as a part of the
operation of the full - service restaurant, on the barge and a gift shop on the
barge, both shown on Exhibit A. Notwithstanding the foregoing, River Rides shall
provide regularly scheduled riverboat rides for not less than 12,000 passengers
per calendar year.
4.2. The following vessels as shown on Exhibit A and no other others without
the prior written consent of the City Manager shall be permitted in the Licensed
Premises:
1) Miss Dubuque
2) Spirit of Dubuque
3) Offices and Training Barge
4) Docking Barge
5) Restaurant and gift shop barge
6) Pontoon Rentals.
4.3. River Rides acknowledges that City will be constructing the Port of
Dubuque Marina Dock System and Utilities Project in the Ice Harbor. River Rides
hereby waives any and all objections to such Project that it could now or
hereafter make to such Project, including but not limited to objections before any
local, state of federal agency that has jurisdiction over the Project. Should River
Rides determine that any reconfiguration required by the construction of the Port
of Dubuque Marina Dock System and Utilities Project in the Ice Harbor cause
undue hardship or make operation of River Rides economically or physically
unviable, River Rides has the right to terminate said Agreement, without penalty.
4.4. Should either the Miss Dubuque or Spirit of Dubuque identified in Section
4.2 be sold or damaged, a replacement boat, subject to City's approval, which
approval shall not be unreasonably withheld, may be substituted and River Rides
shall notify City of said proposed substitution at the earliest available time. River
Rides may seek to initiate a plan for small boat tour and pontoon boat rentals,
which plan shall be submitted to City for approval, which approval shall not be
unreasonably withheld.
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SECTION 5. QUIET ENJOYMENT. City covenants that its estate in said
premises is fee simple; and that the River Rides on paying the rent herein
reserved and performing all the agreements by the River Rides to be performed
as provided in this License, shall and may peaceably have, hold and enjoy the
Licensed Premises for the term of this License free from molestation, eviction or
disturbance by the City or any other persons or legal entity whatsoever.
SECTION 6. CARE AND MAINTENANCE OF PREMISES.
6.1. River Rides takes said premises in their present condition except for any
environmental hazard or condition existing on the Licensed Premises.
6.2. City's Duty Of Care And Maintenance. City shall have no duty of care or
maintenance, including no duty to dredge the Licensed Premises or the Ice
Harbor, except any environmental hazard or condition existing on the Licensed
Premises. When City does dredge, however, River Rides agrees to cooperate
with City to accommodate such dredging.
6.3. River Rides' Duty Of Care And Maintenance. River Rides shall at all times
during the term of this License, at River Rides' own costs and expense, keep and
maintain the Licensed Premises and all improvements and vessels in a condition
consistent with other similarly classed operations as determined by the City
Manager in the City Manager's sole discretion, including but not limited to not
permitting broken windows, deterioration of the exterior of vessels or structures,
and peeling paint. City may, at its discretion, upon reasonable notice to River
Rides, conduct an inspection of the Licensed Premises to determine River Rides'
compliance with this Article 6.
6.4. River Rides will make no unlawful use of said premises and agrees to
comply with all city ordinances, and the laws of the State of Iowa and the Federal
government.
6.5. River Rides acknowledges that it may be necessary for City to close the
Ice Harbor flood gates based on river and weather conditions and River Rides
waives any and all objections to the closing of the flood gates and releases City
from any and all claims it may have arising out of the closing of the flood gates.
SECTION 7. IMPROVEMENTS.
7.1. On delivery of possession of the Licensed Premises to River Rides, River
Rides shall not construct on the Licensed Premises any structures, buildings or
other improvements except as agreed upon in writing by City. City shall have the
right in its sole discretion to approve the design, appearance and quality of any
such Improvements.
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7.2. River Rides shall not encumber by mortgage, deed of trust, or other
instrument, its interest in the Licensed Premises.
SECTION 8. GREATER DOWNTOWN URBAN RENEWAL DISTRICT
DESIGN STANDARDS. River Rides agrees to comply in all respects with the
Greater Downtown Urban Renewal District Design Standards as they currently
exists or might hereafter be amended as such Standards apply to the Licensed
Premises.
SECTION 9. UTILITIES AND SERVICES. River Rides, during the term of this
License, shall pay, before delinquency, all charges for all utilities and services,
including garbage disposal and trash disposal.
SECTION 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL
OF FIXTURES.
10.1. River Rides shall, on the last day of the term of this License or upon any
termination of this License hereof, surrender and deliver up the Licensed
Premises without fraud or delay and in good order, condition, and repair, free
and clear of all lettings and occupancies, free and clear of all liens and River
Rides shall remove any or all of the Improvements erected by River Rides
located on the Licensed Premises and restore the Licensed Premises to the
condition it was in immediately prior to the commencement of the term of this
License.
10.2. Holding Over. Continued possession, beyond the expiratory date of the
term of this License, by the River Rides, coupled with the acceptance of the
specified rental by the City and a written agreement by City for an extension of
this License shall constitute a month to month extension of this License.
SECTION 11. ASSIGNMENT AND SUBLETTING. This License may not be
assigned nor the Licensed Premises sublet by the River Rides without the prior
written consent of the City, which consent shall not be unreasonably withheld.
SECTION 12. TAXES.
12.1. River Rides agrees to pay to City as additional consideration at the time of
the payment of the Annual Fee an amount equal to real estate taxes upon the
real estate of the Licensed Premises for the Term of this License.
12.2. River Rides further agrees to pay all other lawful taxes, rates, charges,
levies and assessments, general and special, of every name, nature and kind,
whether now known or hereafter created which may be taxed, charged,
assessed, levied or imposed upon said real estate, any buildings or
improvements thereon which may be taxed, charged, assessed, levied or
imposed upon the Licensed Premises estate hereby created during the term
5
hereof, and all such taxes, rates, charges, levies and assessments shall be paid
by River Rides as they become due and before they become delinquent, subject,
however, to the limitations and obligations of City set forth in this License.
12.3. River Rides agrees to timely pay all taxes, assessments or other public
charges levied or assessed by lawful authority (but reasonably preserving River
Rides' rights of appeal) against its personal property on the premises, during the
term of this License.
12.4. Nothing herein shall require River Rides to pay any of City's income taxes,
surtaxes, excess profit taxes or any taxes on the rents reserved to City
hereunder.
12.5. River Rides shall at all times have the right to contest in good faith, in any
proper proceedings, in the name of City if necessary, the payment or satisfaction
of any such taxes, assessments, rates, charges or levies so agreed to be paid by
River Rides, if the validity thereof, or the right to assess or levy the same against
or collect the same from said Licensed Premises or improvements, shall be
disputed. Upon the conclusion of any such suit or proceedings, or not less than
three (3) months prior to the date when the right to redeem therefrom expires,
whichever will be the earlier, River Rides will promptly pay and satisfy such
disputed tax, assessment or other charge as finally determined, together with all
expenses, costs and attorneys' fees whatsoever incurred in connection
therewith.
SECTION 13. INSURANCE.
13.1. City and River Rides will each keep its respective property interests in the
premises and its liability in regard thereto, and the personal property on the
premises, reasonably insured against hazards and casualties; that is, fire and
those items usually covered by extended coverage; and River Rides will procure
and deliver to the City a certification from the respective insurance companies to
that effect. Such insurance shall be made payable to the parties hereto as their
interests may appear, except that the River Rides' share of such insurance
proceeds are hereby assigned and made payable to the City to secure rent or
other obligations then due and owing City by River Rides.
13.2. Neither City nor River Rides will do or omit the doing of any act which
would vitiate any insurance, or increase the insurance rates in force upon the
real estate improvements on the premises or upon any personal property of the
River Rides upon which the City by law or by the terms of this License, has or
shall have a lien.
13.3. Waiver Of Subrogation. Notwithstanding any other provision in this
License to the contrary, both City and River Rides hereby waive any and all
rights of recovery, claim, action or causes of action against each other, their
6
agents, officers and employees, for any loss or damage that may occur to the
Licensed Premises, including improvements thereon, or to any property of either
party maintained on the Licensed Premises by reason of fire, casualty, the
elements, or any other cause of physical damage which could be insured against
under the terms of standard fire and extended overage insurance policies,
regardless of cause or origin and regardless of the negligence of the parties
hereto, their agents, officers, invitees and employees. Each of the parties hereto
shall secure such a waiver of subrogation endorsement from its respective
insurance carriers and provide, upon request, a copy of such insurance
endorsement to the other party.
13.4. Insurance Proceeds. City shall settle and adjust any claim against any
insurance company under its said policies of insurance for the premises, and
said insurance monies shall be paid to and held by the City to be used in
payment for cost of repairs or restoration of damaged building, if the destruction
is only partial.
SECTION 14. INDEMNITY AND LIABILITY INSURANCE.
14.1. River Rides shall defend, indemnify, and save harmless City from and
against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted-against City by reason of (a)
any accident, injury to, or death of persons or loss of or damage to property
occurring on or about the Licensed Premises during the term of this License and
resulting from any act or omission of River Rides or anyone claiming by, through,
or under River Rides during the term of the License; and (b) any failure on the
part of River Rides to perform or comply with any of the terms of this License. In
case any action, suit, or proceeding is brought against City by reason of such
occurrence, River Rides will, at River Rides' expense, resist and defend such
action, suit, or proceeding, or cause the same to be resisted and defended by
counsel approved by City.
14.2. River Rides further covenants and agrees that it will at its own expense
procure and maintain insurance as set forth in City's standard Insurance
Schedule for Licensees of City Property as such Schedule may from time to time
be amended. City's current Insurance Schedule is attached hereto.
14.3. City will defend, indemnify, and save harmless River Rides from and
against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against River Rides by
reason of (a) any accident, injury to, or death of persons or loss of or damage to
property occurring on or about the Licensed Premises during the term of this
License and resulting from any act or omission of City or anyone claiming by,
through, or under City during the term of the License; and (b) any failure on the
7
part of City to perform or comply with any of the terms of this License. In case
any action, suit, or proceeding is brought against River Rides by reason of such
occurrence, City will, at City's expense, resist and defend such action, suit, or
proceeding, or cause the same to be resisted and defended by counsel
approved by River Rides.
SECTION 15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF
PREMISES.
15.1. In the event of a partial destruction or damage of the Licensed Premises,
which is a business interference, that is, which prevents the conducting of a
normal business operation of River Rides or the purposes identified above and
which damage is reasonably repairable within sixty (60) days after its
occurrence, this License shall not terminate but the rent for the Licensed
Premises shall abate during the time of such business interference or be
refunded if previously paid. In the event of partial destruction, River Rides shall
repair such damages within sixty (60) days of its occurrence unless prevented
from so doing by acts of God, the elements, the public enemy, strikes, riots,
insurrection, government regulations, city ordinances, labor, material or
transportation shortages, or other causes beyond River Rides' reasonable
control.
15.2. Zoning. Should the zoning ordinance or any other action of the City make
it impossible for River Rides, using diligent and timely effort to obtain necessary
permits and to repair and /or rebuild so that River Rides is not able to conduct its
business on these premises, then such partial destruction shall be treated as a
total destruction as in the next paragraph provided.
15.3. Total Destruction Of Business Use. In the event of a destruction or
damage of the Licensed Premises so that River Rides is not able to conduct
normal business operations, specifically including the purposes identified above
on the Licensed Premises or the then current legal use for which the premises
are being used and which damages cannot be repaired within sixty (60) days this
License may be terminated at the option of River Rides. Such termination in
such event shall be effected by written notice of River Rides to City, within twenty
(20) days after such destruction. River Rides shall surrender possession within
ten (10) days after such notice issues, and each party shall be released from all
future obligations hereunder, City shall promptly refund rental pro rata to the date
of such destruction.
SECTION 16. CONDEMNATION.
16.1. If at any time during the term of this License all or substantially all of the
Licensed Premises or the improvements thereon shall be taken in the exercise of
the power of eminent domain by any sovereign, municipality, or other public or
private authority other than City, then this License shall terminate on the date of
8
vesting of title in such taking and any prepaid rent shall be apportioned based
upon the value of the property taken and the damages actually sustained taking
into consideration any contractual liability incurred by River Rides as a result
thereof as of said date. Substantially all of the Licensed Premises and the
improvements thereon shall be deemed to have been taken if the remaining
portion of the Licensed shall not be of sufficient size to permit River Rides to
operate its business thereon in a manner similar to that prior to such taking.
16.2. Temporary Taking. If the temporary use of the whole or any part of the
Licensed Premises or the Improvements thereon or the appurtenances thereto
shall be taken at any time during the term of this License in the exercise of the
power of eminent domain by any sovereign, municipality, or other authority other
than City, the term of this License shall not be reduced or affected in any way,
and River Rides shall continue to pay in full the rent, additional rent, and other
sum or sums of money and charges herein reserved and provided to be paid by
River Rides, and the entire award for such temporary taking shall be paid to
River Rides. River Rides shall repair and restore any and all damage to the
Licensed Premises and the improvements as soon as reasonably practicable
after such temporary taking.
16.3. Bankruptcy Or Insolvency Of River Rides. In the event River Rides is
adjudicated a bankrupt or in the event of a judicial sale or other transfer of River
Rides' License interest by reason by any bankruptcy or insolvency proceedings
or by other operation of law, but not by death, and such bankruptcy, judicial sale
or transfer has not been vacated or set aside within ten (10) days from the giving
of notice thereof by City to River Rides, then and in any such events, City may,
at its option, immediately terminate this License, re -enter said premises, upon
giving of ten (10) days' written notice by City to River Rides, all to the extent
permitted by applicable law.
SECTION 17. DEFAULT. If River Rides shall fail or neglect to observe, keep,
or perform any of the material covenants, terms, or conditions contained in this
License on its part to be observed, kept, or performed, and the default shall
continue for a period of thirty (30) days after written notice from City setting forth
the nature of River Rides' default (it being intended that in connection with a
default not susceptible of being cured with diligence within thirty (30) days, the
time within which River Rides has to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence), then
and in any such event, City shall have the right at its option, on written notice to
River Rides, to terminate this License and all rights of River Rides under this
License shall then cease. City, without further notice to River Rides, shall have
the right immediately to enter and take possession of the Licensed Premises with
or without process of law and to remove all personal property from the Licensed
Premises and all persons occupying the Licensed Premises and to use all
necessary force therefore and in all respects to take the actual, full, and
exclusive possession of the Licensed Premises and every part of the Licensed
9
Premises as of City's original estate, without incurring any liability to River Rides
or to any persons occupying or using the Licensed Premises for any damage
caused or sustained by reason of such entry on the Licensed Premises or the
removal of persons or property from the Licensed Premises.
SECTION 18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT
OF THE OTHER. If default shall be made by either party in the performance of,
or compliance with, any of the terms, covenants or conditions of this License,
and such default shall have continued for thirty (30) days after written notice
thereof from one party to the other, the person aggrieved, in addition to all other
remedies now or hereafter provided by law, may, but need not, perform such
term, covenant or condition, or make good such default and any amount
advanced shall be repaid forthwith on demand, together with interest at the rate
of 9% per annum, from date of advance.
SECTION 19. SIGNS. River Rides shall have the right and privilege of
attaching, affixing, painting or exhibiting signs on River Rides' vessels and
structures on the Licensed Premises, provided (1) that any and all signs shall
comply with the ordinances of the city of Dubuque and the laws of the State of
Iowa and the Ice Harbor Urban Renewal District Design Standards; (2) such
signs shall not change the structure of any building or the premises; (3) such
signs if and when taken down shall not damage any building or the premises or
such damage shall be repaired; and (4) such signs shall be subject to the prior
written approval of the City, which approval shall not be unreasonably withheld.
SECTION 20. MECHANIC'S LIENS. Neither the River Rides nor anyone
claiming by, through, or under the River Rides, shall have the right to file or place
any mechanic's lien or other lien of any kind or character whatsoever, upon said
premises or upon any building or improvement thereon, or upon the interest of
the River Rides therein, and notice is hereby given that no contractor, sub-
contractor, or anyone else who may furnish any material, service or labor for any
building, improvements, alteration, repairs or any part thereof, shall at any time
be or become entitled to any lien thereon, and for the further security of the City,
the River Rides covenants and agrees to give actual notice thereof in advance,
to any and all contractors and sub - contractors who may furnish or agree to
furnish any such material, service or labor.
SECTION 21. RIGHTS CUMULATIVE. The various rights, powers, options,
elections and remedies of either party, provided in this License, shall be
construed as cumulative and no one of them as exclusive of the others, or
exclusive of any rights, remedies or priorities allowed either party by law, and
shall in no way affect or impair the right of either party to pursue any other
equitable or legal remedy to which either party may be entitled as long as any
default remains in any way unremedied, unsatisfied or undischarged.
10
SECTION 22. PROVISIONS TO BIND AND BENEFIT SUCCESSORS,
ASSIGNS, ETC. Each and every covenant and agreement herein contained
shall extend to and be binding upon the respective successors, heirs,
administrators, executors and assigns of the parties hereto.
SECTION 23. CONSTRUCTION. Words and phrases herein, including
acknowledgment hereof, shall be construed as in the singular or plural number,
and as masculine, feminine or neuter gender according to the context.
SECTION 24. ENVIRONMENTAL.
24.1. City. City shall assume liability and shall indemnify and hold River Rides
harmless against all liability or expense arising from any condition which existed,
whether known or unknown, at the time of execution of the License which
condition is not a result of actions of the River Rides or which condition arises
after date of execution but which is not a result of actions of the River Rides.
24.2. River Rides. River Rides expressly represents and agrees:
(1) During the License term, River Rides' use of the property will
not include the use of any hazardous sub stance without River
Rides first obtaining the written consent of City. River Rides
understands and agrees that City's consent is at City's sole option
and complete discretion and that such consent may be withheld or
may be granted with any conditions or requirements that City
deems appropriate.
(2) During the License term, River Rides shall be fully liable for
all costs and expenses related to the use, storage, removal and
disposal of hazardous substances used or kept on the property by
River Rides, and River Rides shall give immediate notice to City of
any violation or any potential violation of any environmental
regulation, rule, statute or ordinance relating to the use, storage or
disposal of any hazardous substance.
(3) River Rides, at its sole cost and expense, agrees to
remediate, correct or remove from the premises any contamination
of the property caused by any hazardous substances which have
been used or permitted by River Rides on the premises during any
term of this License. Remediation, correction or removal shall be in
a safe and reasonable manner, and in conformance with all
applicable laws, rules and regulations. River Rides reserves all
rights allowed by law to seek indemnity or contribution from any
person, other than City, who is or may be liable for any such cost
and expense.
11
(4) River Rides agrees to defend, indemnify and hold City
harmless from and against all claims, causes of action, damages,
loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney
fees, engineering and consulting fees, arising out of or in any
manner connected with hazardous substances, which are caused
or created by River Rides during the term of this License including,
but not limited to, injury or death to persons or damage to property,
and including any diminution of the value of any Licensed Premises
which may result from the foregoing. This indemnity shall survive
the cessation, termination, abandonment or expiration of this
License for a period of five years.
SECTION 25. AMERICANS WITH DISABILITIES ACT. River Rides shall be
solely responsible for, and agrees to indemnify and hold City harmless from, any
and all repairs, additions, claims, fines, penalties, fees or any other costs or
obligation in any way imposed by or required by or related to the American's with
Disabilities Act in connection with the Licensed Premises during the term of this
License.
SECTION 26. ICE HARBOR PARKING AGREEMENT.
26.1. City agrees that River Rides' patrons and not more than three of River
Rides' employees designated by River Rides may have the privilege during the
Term of this License to park in Lot 1 but only upon such terms and conditions as
City determines appropriate, including but not limited to the payment of a parking
fee by users of Lot 1. City shall have the right in its sole discretion to terminate
such parking privileges at any time. In the event City terminates such parking
privileges in Lot 1, River Rides acknowledges that the Port of Dubuque has other
parking available for River Rides' patrons and employees on a nonexclusive,
first -come, first - served basis, subject to any agreements City has to provide
parking to other users. River Rides further acknowledges that City has the option
to create other arrangements for River Rides' patrons and employees on a
nonexclusive, first -come, first - served basis.
26.2. River Rides shall use its best efforts to prohibit its employees from parking
in Lots 1, 2,3or6.
SECTION 27. MEMORANDUM OF LICENSE. Each of the parties hereto will,
promptly upon request of the other, execute a memorandum of this License in
form suitable for recording setting forth the names of the parties hereto and the
term of this License, identifying the Licensed Premises, and also including such
other clauses therein as either party may desire.
SECTION 28. NOTICES. All notices, demands, or other writings in this License
provided to be given or made or sent, or which may be given or made or sent, by
either party to the other, shall be deemed to have been fully given or made or
12
sent when made in writing and deposited in the United States mail, registered
and postage prepaid, and addressed as follows:
TO CITY:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque, Iowa 52001
TO RIVER RIDES:
Dubuque River Rides, Inc.
Nancy M. Webster, President
P.O. Box 1276
Dubuque, Iowa 52004 -1276
The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given
by the party as above provided.
SECTION 29. MISCELLANEOUS.
29.1. Time Of The Essence. Time is of the essence of this License and all of
its provisions.
29.2. Governing Law. It is agreed that this License shall be governed by,
construed, and enforced in accordance with the laws of the State of Iowa.
29.3. Paragraph Headings. The titles to the paragraphs of this License are
solely for the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in the interpretation of the provisions of this License.
29.4. Modification Of Agreement. Any modification of this License or additional
obligation assumed by either party in connection with this License shall be
binding only if evidenced in a writing signed by each party or an authorized
representative of each party.
29.5. Parties Bound. This License shall be binding on and shall inure to the
benefit of and shall apply to the respective successors and assigns of City and
River Rides. All references in this License to "City" or "River Rides" shall be
deemed to refer to and include successors and assigns of City or River Rides
without specific mention of such successors or assigns.
13
29.6. Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, unavailability or excessive price of
fuel, power failure, riots, insurrection, war, terrorist activities, chemical
explosions, hazardous conditions, fire, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party
delayed in performing work or doing acts required under the terms of this
License, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay.
IN WITNESS WHEREOF, the parties hereto have duly executed this
License in duplicate the day and year first above written.
CITY OF DUBUQUE, IOWA
V. Sutton, Mayor ro-Tem
By:
Key n S. irns . hl, Acting ity Clerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
DUBUQUE RIVER RIDES, INC.
ancy Webster, President
On this 19th day of September , 2011, before me, a Notary Public in
and for the State of Iowa, personally appeared Lynn Sutton & ■ Kevin S.
Firnstahl, to me personally known, and, who, being by me duly sworn, did say
that they are the Mayor and Acting City Clerk, respectively, of the City of
Dubuque, Iowa; that the seal affixed to the foregoing instrument is the corporate
seal of the city, and that the instrument was signed and sealed on behalf of the
city, by authority of its City Council, approved by the City Council of the City of
Dubuque, Iowa, on the 19th day of September , 2011, and that they
acknowledged the execution of the instrument to be their voluntary a t-a •eed
and the voluntary act and deed of the corpor -tion, by ' volunta ' executed
i
Nataiv Public inrsti
anal* fir Sta'
14
I 0 SUSAN M. WINTER
COMMISSION NO.183274
z • MY COMMISSION EXPIRES
W" 2/14/14
e of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this ,5 day of c.,66 e' K , 2011, before me, a Notary
Public in and for the State of Iowa, personally appeared Nancy M. Webster, to
me personally known, who being by me duly sworn did say that she is the
president of Dubuque River Rides, Inc., that (the seal affixed hereto is the seal of
said)(no seal has been procured by the said) corporation and that said
instrument was signed (and sealed) on behalf of said corporation by authority of
its managers and the said corporation acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation, by it voluntarily
executed.
�,,� ANITA C. SULLIVAN
;' . Notarial Seal • IOWA
'Commlaslon Number 180280 Notary Public in and for State of Iowa
1pM1A M Cp mm_ !sslon Expires — ,/7 —/
F: \USERS \tsteckle \Lindahl \Dubuque River Rides\ DockingLicenseAgreemeno9o111bal .doc
15
EXHIBITS A AND B
LICENSED PREMISES
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ICE HARBOR
• INIIGRESS,+IEGRESS EASEMENT
• APPROVED LOCATION FOR
ONE SIGN
280'
DUBUQUE RIVER
RIDES
DOCKING PREMISES
34,T80 S.F.
(0.80 ACRE)
4 3O 60'
SCALE 1" = 60° FEET
120'
FLOOD CONTROL
GATES
Dubuque
2007
CrrY OF DUBUQUE
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ENGINEERING; DEPARTMENT
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(PORT OF'DUBUDII IE
DUituQLJE 1RJVIrR KIWIS
DOCKING LICENSE AGREEMENT EXHIBIT
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17
PARKING
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PARKING LOT 2
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FLOOD CONTROL
GATES
Dubuque
2007
CITY- OF DUBUQUE
ENO INEERIND DEPARTMENT
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DOCKING LICENSE AGREEMENT EXHIBIT
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18
INSURANCE SCHEDULE
19
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A
1. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the
coverage required in Exhibit I prior to contract inception and at the end of the contract if the term of
contract is longer than 60 days. Each Certificate shall be prepared on the most current ACORD form
approved by the Iowa Department of Insurance or an equivalent.
2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M. Rest's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form Is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the ISO form.
7. Provider shall be required to carry the minimum coverage /limits, or greater If required by law or other
legal agreement, in Exhibit I.
Page 1 of 3 Schedule A, August, 2011.Doc
20
City of Dubuque insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A (continued)
Exhibit I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard ISO commercial general liability form CG 0001, or Business owners form BP 0002,
shah be clearly identified.
b) Include ISO endorsement form CG 2504 "Designated Location(s) General Aggregate Limit"
c) Include endorsement indicating that coverage is primary and non - contributory.
d) Include endorsement to preserve Governmental Immunity. (Sample attached).
e) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its employees
and volunteers, all its boards, commissions and/or authorities and their board members,
employees and volunteers.
using ISO form CG 2010. Ongoing operations.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Coverage A
Coverage B
Statutory—State of Iowa
Employers Liability
Each Accident $100,000
Each Employee- Disease $100,000
Policy Limit - Disease $500,000
a) Policy shall include an endorsement providing a waiver of subrogation to the City of
Dubuque.
Page 2 of 3
21
Schedule A, August, 2011.Doc
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity, and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa
under this policy for reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 3 of 3
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Schedule A, August, 2011.Doc